Harris.Tort

Question 1

What are non-pecuniary damages?

Answer 1

Non-pecuniary damages are damages that are not readily quantified or valued in money, such as proposed compensation for pain and suffering

Question 2

The overall goal of tort reform is to…

Answer 2

…achieve stability & predictability in the tort system and to balance fairness between plaintiff & defendant

Question 3

would Canadian tort reform be provincial OR federal

Answer 3

provincial: (needs to be coordinated with the various Provincial Attorneys General)

Question 4

Cdn tort reforms: position of insurance industry (& why)

Answer 4

• insurance industry WANTS REFORM:
  
  • lowers COSTS
  • increases STABILITY & PREDICTABILITY of awards

Question 5

Cdn tort reforms: position of Supreme Court

Answer 5

SupCrt will continue to be plaintiff-friendly UNLESS insurance industry gets reform enacted

Question 6

Cdn tort reforms: position of trial lawyers (& why)

Answer 6

don’t want reform (compensation for both plaintiffs and lawyers could be lower)

Question 7

Cdn tort reforms: identify potential reforms to Canada’s plaintiff-friendly tort system (4)

Answer 7

[1] J&S liability
- eliminate
- replace with proportionate liability
- created fund for guilty parties who can’t pay
[2] Collateral source rule
- eliminate
[3] Compensatory basis
- change from gross to net basis
[4] Vicarious liability
- eliminate

Question 8

define J&S (Joint & Several) liability

Answer 8

plaintiff may recover (ANY or ALL damages) from (ANY or ALL defendants) regardless of share of liability

Question 9

describe the proposed REFORM for J&S liability (3)

Answer 9

ELIMINATE J&S: for non-pecuniary damages
REPLACE J&S: with rule of proportional liability
FUND creation: for guilty parties that can’t pay

Question 10

describe proportionate liability

Answer 10

each defendant bears a cost proportionate to their degree of fault or liability

Question 11

define the ‘collateral source rule’ & provide an example of a collateral source

Answer 11

• evidence of plaintiff’s collateral source need not be entered AT TRIAL
  (examples include sick pay & disability)
• so there is potential for over-compensation

Question 12

collateral source rule: describe the proposed REFORM for the ‘collateral source rule’

Answer 12

eliminate (& allow collateral sources to be taken into account when determining award)

Question 13

describe the proposed REFORM for the ‘collateral source rule’

Answer 13

eliminate (& allow collateral sources to be taken into account when determining award)

Question 14

define ‘compensatory basis’ in the context of income replacement

Answer 14

compensatory basis:
- refers to basis for compensating loss of income
- the basis can be either prior net income OR prior gross income
- income replacement is a percentage of this basis
- current practice uses a percentage of gross income
comment:
- gross basis ignores taxes & work-related expenses that aren’t incurred when not working
- so there is potential for over-compensation

Question 15

describe the proposed REFORM to ‘compensatory basis’ in the context of income replacement

Answer 15

switch from gross to net basis

Question 16

define ‘vicarious liability’ and provide an example

Answer 16

• where one party is held responsible for actions of another
• EXAMPLES: employee, subordinate, sublease, car rental, sexual abuse

Question 17

describe the proposed reform to ‘vicarious liability’

Answer 17

eliminate

Question 18

identify an advantage & disadvantage of ‘joint & several liability’ reform

Answer 18

advantage:
- discourages search for deep pockets & decreases costs
disadvantage:
- there is a cost to determining proportionate liability
- parties would tend to argue for a lower percentage

Question 19

identify an advantage & disadvantage of ‘collateral source rule’ reform

Answer 19

advantage:
- reduces possibility of over-compensation
disadvantage:
- guilty party may not provide full compensation (but they should)

Question 20

identify an advantage & disadvantage of ‘compensation basis’ reform

Answer 20

advantage:
- reduces possibility of over-compensation
disadvantage:
- interferes with INTENTIONAL government tax break for injured party

Question 21

identify an advantage & disadvantage of ‘vicarious liability’ reform

Answer 21

advantage:
- discourages search for deep pockets
disadvantage:
- ALL involved parties should be held responsible REGARDLESS of level of liability

Question 22

how does ‘joint & serveral liability’ increase efficiency

Answer 22

• reduces time & costs: promotes pre-trial settlement since damages don’t have to be apportioned

Question 23

(advantage OR disadvantage J&S) with respect to defendant (1-1)

Answer 23

advantage: can share burden
disadvantage: may have to pay a greater proportion THAN the degree of liability

Question 24

(advantage OR disadvantage J&S) with respect to plaintiff (1-0)

Answer 24

advantage: increases probability of full compensation WITH access to assets of all defendants
disadvantage: none

Question 25

(advantage OR disadvantage J&S) with respect to insurers (1-1+)

Answer 25

advantage: can share burden
disadvantage: may have to pay a greater proportion THAN the degree of liability –> (cost,unpredictability) UP

Question 26

(advantage OR disadvantage J&S) with respect to lawyer (1-1)

Answer 26

advantage: increases efficiency in legal system since it promotes settlement without trial
disadvantage: fewer cases go to court (lawyers get less $$$s)

Question 27

how are Cdn tort laws too plaintiff-friendly

Answer 27

basically just explain JCCV issues: (J&S liability | collateral source rule | compensatory basis | vicarious liability)

Question 28

give an example of a defendant group negatively impacted by J&S liability & state the impact

Answer 28

GROUP: defendants in asbestos injury suits
IMPACT: many defendants are bankrupt, others may pay more than their fair share under J&S

Question 29

disadvantage of simple elimination J&S liability

Answer 29

• if a defendant goes bankrupt then there is no recourse to assets of other defendants
• plaintiff may not be fully compensated

Question 30

remedy to disadvantage of simple elimination of J&S

Answer 30

creation of a fund for guilty parties that can’t pay their share